financial assistance for a chronic disease such as gaucher, which involves
lifelong expenditure.
There are even no incentives in place for Indian
manufacturers to develop local alternatives to orphan drugs.
43.
This Court is of the opinion that neither any promising orphan drug
will be developed nor the prohibitive cost of 'orphan drugs' will see a
reduction unless changes are made in the applicable laws to reduce the costs
of developing such drugs and to provide financial incentives to develop such
drugs like in the abovementioned countries.
COURT CANNOT DIRECT EITHER PARLIAMENT TO PASS A
LEGISLATION OR THE EXECUTIVE TO FRAME A POLICY.
44.
Keeping in view the concept of separation of powers as incorporated
in the Constitution, this Court cannot direct Parliament to enact a Central
legislation on Right to Public Health or with regard to rare diseases or
orphan drugs, even though the same may be eminently desirable.
45.
Similarly, as formulation of a policy is within the exclusive domain of
the Executive, this Court refrains from issuing directions. A Division Bench
of this Court in J.K. Sawhney Vs. Punjab National Bank, 2010 VII AD
(DELHI) 756 has held , "Moreover, it is imperative to emphasise that the
formulation of a policy is within the exclusive domain of executive and the
Courts should shy away from issuing directions for formulation of a policy
which has financial, economic and other implications, which at the best
should be left to the wisdom of the executive."
ISSUE HAS TO BE DECIDED IN THE CONTEXT OF INDIAN
CONSTITUTION
46.
Consequently, the issue raised in the present proceedings is to be
decided in the context whether the Indian Government owes a constitutional
W.P.(C) 7279/2013
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